Judge Griffen rips Human Services for refusing to use nurses to assess disabled

Bradley Ledgerwood

Circuit Judge Wendell Griffen has again ripped the state Human Services Department for resisting his orders to assess homecare needs of the disabled by nurses rather than an algorithm.

After hearing arguments, Griffen made official his earlier finding that the state was in contempt of his order not to use a computer algorithm. He imposed punishment and orders to comply with earlier rulings, including referral of DHS attorneys to the Supreme Court Committee on Professional Conduct for potential discipline.

The judge ordered the state to:

* Compile the number of people assessed by registered nurses before the algorithm method was begun Jan. 1, 2016./

* Compile the number of people it had failed to personally assess since Feb. 7, 2017, when the court first found the state out of compliance. The state tried to pass an "emergency" rule to use the new method, known as a RUG, but the judge has found that was just a sham and that no emergency existed.

* He ordered a monthly report, by name, filed under seal of those who the state had failed or refused to reassess by a nurse.

* DHS counsel Richard Rosen and David Sterling (the one-time Republican candidate for attorney general and now a candidate for Arkansas Supreme Court) were referred to the Supreme Court Committee

"for determination whether they possess the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary to represent DHS in complying with the permanent injunction entered in this litigation."

The judge said he intended to retain jurisdiction over the dispute.

His order was biting and harshly critical. "Imbecilic" was one word he employed in discussing state legal arguments.

He blistered the state for asserting it could not continue personal assessments of disabled because the judge had barred the algorithm method until it had fully complied with the administrative procedures act by having a full hearing on the new standard, which plaintiffs say will result in arbitrary reductions of needed care.

That declaration is the latest example of DHS defiance of the permanent injunction, its callous disregard for the rule of law, and its calculated disingenuous representations to this court, the disabled community it is legally obligated to serve and the general public

I'm seeking a reaction from DHS.

Here's the judge's full order.

He says the state "fabricated" an emergency to avoid following the prevailing law that requires personal assessments. He called "preposterous" the state's assertion that it had halted assessments to comply with his earlier injunction against using the algorithm. The state's theory seems to be that it has no approved method if the new method isn't usable. But the judge said the state had made no showing that it had attempted to clarify that point with the federal government or otherwise provide a showing why it couldn't continue with past practices. Except that it didn't want to do so.

UPDATE: From Amy Webb at DHS:

We plan to comply with the Judge's ruling, which we are reviewing.

The backlog of assessments:

Assessments for people waiting for services — 1,116

Re-assessments of current beneficiaries — 1,377

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Judge Griffen rips Human Services for refusing to use nurses to assess disabled

Costs for live-in health aides in Bergen and Passaic counties set to rise

It hasn’t been easy for Linda Leeder’s family to honor her 92-year-old father’s wish that he remain in his home, despite his advancing Alzheimer’s disease.

To raise money for the live-in aide he requires, his kids secured a reverse mortgage on the home he’s lived in for 55 years. The Franklin Lakes woman figures the financing arrangement will pay for three to four years of home care.

But hotly contested federal labor regulations taking effect Thursday could mean the aide who cares for Leeder’s father will have to be paid overtime for more of her working hours, instead of a flat daily rate.

“I think this will massacre the live-in industry,” said Lenny Verkhoglaz, principal owner of Executive Care, the Hackensack-based employer of the aide.

Verkhoglaz estimates that the cost of a round-the-clock live-in aide — about $67,000 a year — could increase by $10,000.

“Families won’t be able to afford the increases we’d have to charge,” said Verkhoglaz, who estimates that 80 percent of his clients in Bergen, Passaic and three other counties pay out of pocket, often exhausting life savings or home equity.

Worker groups and aging advocates contend that the federal government’s move to put such hourly and live-in aides on par with other protected employee groups will help build a more stable workforce. That, in turn, could lead to less turnover and burnout in a field that will need to expand with the aging of the baby boomer population — a generation more likely to demand home care over institutional care.

“If the business model of the home-care industry is so shaky that they can’t afford to pay people according to federal law, then I think that needs to be considered,” said Sarah Leberstein, staff attorney for the National Employment Law Project.

The group is one of several labor organizations that pressed the Obama administration for the new rules, which are the subject of a two-pronged legal challenge.

The debate over whether live-in home-care workers should be entitled to overtime pay for the hours they are not asleep or on a meal break has simmered for years. The controversy promises to stretch into another year, now that industry groups won a slight reprieve this week from a federal judge who struck down some of the changes scheduled for Thursday.

At issue is a 40-year-old provision of federal wage and overtime laws known as the “companionship exemption.”

The provision, enacted in 1974 amendments to the Fair Labor Standards Act, meant that live-in or hourly domestic workers who “provide fellowship, care and protection” to an elderly or infirm person were not entitled to the minimum wage and overtime protections that other domestic workers had.

For nearly a decade, worker advocates have lobbied to do away with the exemption, which they say harkens to an era when relatives informally hired a neighbor or an acquaintance to serve as companions to the elderly. Today, home care is increasingly provided by for-profit elder-care chains that count on a cheap workforce to do a job that has become far more physically and emotionally taxing.

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Costs for live-in health aides in Bergen and Passaic counties set to rise